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Abc Sand and Rock Company, Inc. v. Maricopa County

United States District Court, Ninth Circuit

November 18, 2013

ABC Sand and Rock Company, Inc., Plaintiff,
v.
Maricopa County, et al., Defendants.

ORDER

NEIL V. WAKE, District Judge.

Before the Court is Defendants' Motion to Dismiss/Motion to Strike/Motion for Stay of Proceedings (Doc. 39).

I. FACTS ALLEGED AND ASSUMED TO BE TRUE

On a motion to dismiss, all allegations of material fact are assumed to be true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). The principle that a court accepts as true all of the allegations in a complaint does not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009).

Defendant Flood Control District of Maricopa County ("District") is a political subdivision of Defendant Maricopa County and the State of Arizona. Defendants DeWayne Justice, Melvin Martin, Hemant Patel, Scott Ward, and Wylie Bearup are members of the Flood Control Advisory Board, which advises the Maricopa County Board of Supervisors regarding flood control, floodplain management, drainage, and related matters. The Flood Control Advisory Board also acts as the administrative review board for administrative appeals ("Review Board").

Defendant Timothy Phillips is the Chief Engineer and General Manager of the District. Defendant Mike Jones is the District's Sand and Gravel Division Supervisor. Defendant Jack Guzman is a sand and gravel inspector employed by the District. Defendant Ed Raleigh is the District's Floodplain Administrator.

Plaintiff ABC Sand and Rock Company, Inc. ("Plaintiff") is a small sand and gravel mining business that operates in Maricopa County. It established a mining operation in Glendale, Arizona ("Plant 1") in 1985 and another in Tonopah, Arizona ("Plant 2") in 2002.

As alleged, the District's primary requirement to obtain a sand and gravel permit is a mining Plan of Development. Plaintiff alleges that for many years the District required only a very simple Plan of Development to obtain a sand and gravel permit, and the District would automatically renew permits in five-year increments upon the payment of the renewal fee and, sometimes, submission of a simple permit renewal form. As alleged, permits were effectively deemed renewed upon receipt of the renewal fee, and sometimes the District did not formally process renewals for many months.

Plaintiff alleges that in 1995, the District did not formally process and approve Plaintiff's Plant 1 permit renewal until almost seven months after the formal expiration date. In 2000, Plaintiff obtained its Plant 1 permit renewal by submitting a simple renewal application and its application fee, and the District did not formally process the Plant 1 permit renewal until more than one year after the formal expiration date. In 2006, Plaintiff submitted its Plant 1 permit renewal fee without a new application form, and the District inspector wrote on Plaintiff's 2000 renewal application a new expiration date: "EXP Date 2/17/2011."

For Plant 2, Plaintiff submitted its application fee and Plan of Development in 2006. The District inspector directed where a berm needed to be installed, and upon its completion, the inspector approved Plant 2 for operations.

On February 14, 2011, Plaintiff's president submitted the renewal fee for Plaintiff's Plant 1 permit fee with a letter stating that he was seeking renewal of the existing permit and was not making any change to his Plan of Development. The letter also set forth detailed criticism of the District and its proposed regulatory changes.

On March 10, 2011, the District inspected Plant 1 and determined that Plaintiff passed inspection "per plan." The District inspector requested that Plaintiff submit a renewal application, and Plaintiff did. On April 11, 2011, Defendant Jones made additional requests, including information about operations, new engineering, and consent to new permit terms on the existing plan. Plaintiff provided much of the information that Defendant Jones requested.

On May 31, 2011, the District, through Defendant Raleigh, issued a Notice of Violation against Plaintiff, which stated that Plaintiff was operating Plant 1 without a permit and that the Plant 1 permit had not been renewed in 2006 or 2011. The District demanded that Plaintiff completely cease its business operations and pay a fine of $169, 000. At some point, presumably when the District concluded the Plant 1 permit had expired, the District notified the Arizona Department of Transportation, and Plaintiff was removed from the Department's bid list. In September 2011, Plaintiff met with the Defendant Raleigh and the District's attorneys, and Plaintiff alleges the parties came to an agreement, but never finalized it.

On September 12 and 15, 2011, a hearing was held before an administrative hearing officer regarding Plaintiff's challenge to the Notice of Violation. The hearing officer found that the Plant 1 permit was renewed in 2006 and expired on May 14, 2011. Subsequently, Defendant Phillips issued his final order, adopting the hearing officer's ruling and issuing a fine of $169, 000. ...


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